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Lord Kingsland: My Lords, I thank the Minister for her reply.

The noble Lord, Lord Borrie, is right in observing that the amendment resiles from the muscularity of the amendment that the noble Lord, Lord Goodhart, and I tabled on Report. As the noble Lord, Lord Goodhart, said, we had sight of the report from another place only 24 hours before we had to table amendments, which gave neither of us time properly to examine all the implications of the Public Administration Committee's draft.

However, I do not believe that the noble Lord, Lord Goodhart, would mind my saying that as a result of a period of further reflection, while I remain attracted to the amendment that we tabled on Report, he had certain reservations which he expressed, very fairly; therefore, in the spirit of compromise, we devised the amendment currently before your Lordships. I believe that it is also fair to say that, in the course of devising the amendment, we had a number of discussions with the Minister in the hope that we might find a draft of sufficient allure to change the Minister's view. As your Lordships have heard from the Minister's comments at the Dispatch Box, that was not to be.

I have listened carefully to what noble Lords have said about our amendment. I was rather puzzled by the views expressed by the noble Lord, Lord Laming, for whom I have the greatest possible respect, as has the whole House. It seems to me that constitutionally a Minister is accountable not to the Prime Minister but to Parliament. The whole logic of our constitution is that Ministers are responsible to Parliament. Therefore, in my submission, the fundamental responsibility to make Ministers live up to the standards which they ought to live up to reposes in Parliament. In my view, the amendment that we have tabled seeks to achieve precisely that.
 
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The Minister feared that, if the amendment was included in the Bill, Parliament might be tempted to use it. That was the whole purpose for which the noble Lord, Lord Goodhart, and I tabled it in the first place. If we cannot robustly protect the position of Parliament in relation to a Minister's conduct, I wonder what we are all for. I should like to test the opinion of the House.

3.37 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 137; Not-Contents, 130.


Division No. 1


CONTENTS

Ackner, L.
Addington, L.
Alton of Liverpool, L.
Ampthill, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Beaumont of Whitley, L.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Brougham and Vaux, L.
Campbell of Alloway, L.
Colwyn, L.
Cope of Berkeley, L.
Cox, B.
Craigavon, V.
Cumberlege, B.
Denham, L.
Derby, Bp.
Dholakia, L.
Dixon-Smith, L.
Donaldson of Lymington, L.
Dykes, L.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Falkner of Margravine, B.
Fearn, L.
Feldman, L.
Fookes, B.
Fowler, L.
Garden, L.
Gardner of Parkes, B.
Geddes, L.
Gilmour of Craigmillar, L.
Glentoran, L.
Goodhart, L. [Teller]
Goschen, V.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of Richmond, B.
Higgins, L.
Hodgson of Astley Abbotts, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hurd of Westwell, L.
Jenkin of Roding, L.
Jopling, L.
Kimball, L.
Kingsland, L.
Kirkham, L.
Laing of Dunphail, L.
Lane of Horsell, L.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Mackie of Benshie, L.
McNally, L.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Molyneaux of Killead, L.
Monson, L.
Montrose, D.
Morris of Bolton, B.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Naseby, L.
Neill of Bladen, L.
Neuberger, B.
Noakes, B.
Northesk, E.
Northover, B.
Oppenheim-Barnes, B.
Park of Monmouth, B.
Patten, L.
Peel, E.
Perry of Southwark, B.
Plumb, L.
Quinton, L.
Redesdale, L.
Rees-Mogg, L.
Rennard, L.
Renton, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Sharp of Guildford, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Tebbit, L.
Thatcher, B.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Tordoff, L.
Trenchard, V.
Trumpington, B.
Waddington, L.
Walker of Worcester, L.
Walmsley, B.
Watson of Richmond, L.
Weatherill, L.
Windlesham, L.

NOT-CONTENTS

Acton, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B. (Lord President of the Council)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Bledisloe, V.
Borrie, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chorley, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Condon, L.
Corbett of Castle Vale, L.
Crawley, B.
Darcy de Knayth, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Temple Guiting, L. [Teller]
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jones, L.
Jordan, L.
Laming, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Listowel, E.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Marsh, L.
Masham of Ilton, B.
Mason of Barnsley, L.
Maxton, L.
Merlyn-Rees, L.
Mitchell, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Murphy, B.
Nicol, B.
Ouseley, L.
Palmer, L.
Pendry, L.
Plant of Highfield, L.
Radice, L.
Rendell of Babergh, B.
Richardson of Calow, B.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Snape, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Tenby, V.
Thornton, B.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Wall of New Barnet, B.
Walpole, L.
Warnock, B.
Wedderburn of Charlton, L.
Whitaker, B.
Wilkins, B.
Williamson of Horton, L.
Winston, L.
Woolmer of Leeds, L.


Resolved in the affirmative, and amendment agreed to accordingly.


 
28 Feb 2005 : Column 22
 
3.48 p.m.

Clause 10 [Appointment of judge as panel member]:

Lord Goodhart moved Amendment No. 2:

The noble Lord said: My Lords, Clause 10 provides that if a Minister wants to appoint a judge as a member of an inquiry panel, he or she must consult the appropriate judge. The appropriate judge is the senior Law Lord for serving Law Lords. No doubt if and when the Constitutional Reform Bill is enacted, for justices of the Supreme Court the appropriate judge would be the President of the Supreme Court. The appropriate judge for the judiciary of England and Wales is the Lord Chief Justice of England and Wales; for the judiciary of Scotland it is the Lord President of the Court of Session; and for the judiciary of Northern Ireland it is the Lord Chief Justice of Northern Ireland.

The purpose of the amendment, which is very simple, is to require the consent of the appropriate judge instead of simply a requirement to consult him or her. I moved a similar amendment on Report. The main speeches on that occasion in favour of this amendment came from the Lord President, the noble and learned Lord, Lord Cullen of Whitekirk, and the Lord Chief Justice, the noble and learned Lord, Lord Woolf. I was, and remain, happy to adopt both their speeches.

To summarise briefly, as this is a Third Reading debate, judges cannot always be spared from their job. That is especially true in the Appellate Committee of your Lordships' House, which has only 12 members, and it has been deprived of the services of one of them—the noble and learned Lord, Lord Saville—for the past seven years. There may also be circumstances where it is inappropriate for any judge to chair a particular inquiry. There is a danger if the issues are too political, because the involvement of a judge may be seen as harmful to judicial independence; or the subject matter may be inappropriate for a judge to act as chair. One possible example of that was the inquiry chaired by Lord Wilberforce, many years ago, into the dock labour system. He produced a report that was widely regarded as not being the high point of his otherwise extremely prestigious career.

As the noble and learned Lord, Lord Cullen, said, it is difficult for a judge to turn down an approach from the government to chair an inquiry. In England and Wales
 
28 Feb 2005 : Column 23
 
up to now, the Lord Chancellor has been the head of the judiciary. It is fairly obvious that he could hardly ask himself for his own consent to the appointment of a particular judge to chair an inquiry. But the forthcoming enactment of the Constitutional Reform Bill will change that, and the Lord Chief Justice will be head of the judiciary and, under the concordat that accompanies the Constitutional Reform Bill, he will be responsible for judicial deployment. We believe that it is appropriate that his consent should be required. The noble and learned Lord, Lord Woolf, argued the case very strongly on Report. He is unable to be here today because he has to chair a meeting of the Judges' Council, but he has told me that his views remain unaltered since he expressed them on Report.

I believe that the arguments apply a fortiori to the smaller judicial bodies in the Appellate Committee, in Scotland and in Northern Ireland. It is in the interests of everyone, including the Government, that if a judge is to be appointed to an inquiry he should be appointed by the joint agreement of the Minister and the appropriate senior judge. I believe that this is a significant amendment. I beg to move.


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